Legal Profession Commons^™

Legal Malpractice In Washington: Use Of The Rules Of Professional Conduct, Angelo Tadrous

Seattle University Law Review

Legal malpractice claims are difficult to prove. They are difficult to prove because many jurisdictions require that a plaintiff prove that, but for the lawyer’s misconduct, the client would have fared better. Thus, in a malpractice suit, a plaintiff must try a case within a case. Despite this difficulty, many jurisdictions prohibit the use of the Rules of Professional Conduct when litigating a malpractice case. Washington State is one of these jurisdictions. The Washington Supreme Court held in Hizey v. Carpenter that the Rules of Professional Conduct may not be referred to during trial. This Note argues that this prohibition …

The Pro Bono Industrial Complex, Tanina Rostain

Georgetown Law Faculty Publications and Other Works

Recent settlements between corporate law firms and the Trump Administration, consisting of donations totaling nearly $1billion in free representation, have brought law firm pro bono to the fore. Pro bono has been institutionalized in corporate law firms since the turn of the 21^st century. Pro bono evangelists and corporate law firms contend that pro bono increases access to justice and protects individual rights. Scholarship on pro bono has not challenged these claims, focusing instead on managerial and organizational incentives that could increase the number of hours corporate firms devote to pro bono. Given the prominence of corporate law firm …

Judicial Ethics, The Supreme Court, And The Rule Of Law, Charles G. Geyh

Articles by Maurer Faculty

This Essay begins with a short history of judicial ethics regulation in the United States, ending with the adoption of codes of conduct by every state and federal judicial system except the Supreme Court of the United States. It then turns to a series of ethics controversies encircling the Supreme Court and its justices, which culminated in the Supreme Court adopting a Code of Conduct in 2023. Tapping into the social science literature, it argues that for codes to improve the ethical climate of an institution they must encourage psychological ownership of and “buy-in” to a code by those subject …

Preventive Transparency In Third-Party Litigation Funding, Seth Katsuya Endo

Northwestern University Law Review

For years, efforts to comprehensively regulate third-party litigation funding have been unsuccessful. But bills requiring mandatory disclosure are being introduced in Congress, and the Advisory Committee for Civil Rules has finally agreed to take up the issue. By grounding the discussion of third-party litigation funding in both the broader civil procedure and professional responsibility scholarship, this Article identifies an easy, uncontroversial reform to preventively address the categorical concerns raised by the practice. The primary contribution is a doctrinal intervention, identifying how legal ethics are an integral part of federal civil procedure and then drawing out the implications for third-party litigation …

The Art Of Ai Prompting In Law And Dispute Resolution Practice, John Lande

Faculty Publications

This short article offers a practical guide for using AI tools to improve the judgment and efficiency of lawyers, mediators, and arbitrators.  It cites ABA Ethics Opinion 512, which describes lawyers’ ethical duty of technological competence under the ABA Model Rules.

The article encourages practitioners to begin by selecting AI tools appropriate to their tasks such as general-purpose platforms or specialized tools listed in the article.  It explains how to write effective prompts, use follow-up questions to refine outputs, and apply professional judgment when reviewing results.  It includes a list of suggested follow-up prompts.

Getting useful results from AI tools …

How The Billable Hour Can Survive Generative Ai, Jonah Perlin

Georgetown Law Faculty Publications and Other Works

The legal profession is rapidly adopting generative AI technology. With this shift has come an increasingly common assumption that generative AI will significantly reduce or even bring an end to hourly billing. The logic underlying this conclusion seems intuitive: if AI reduces the time lawyers spend on certain tasks while eliminating others altogether, then the total number of billable hours will fall. That decline, in turn, could threaten the financial viability of hourly billing, despite its place as the dominant law firm compensation model over the past half century.

This Article challenges this assumption. It argues instead that the billable …

Brief Of Legal Ethics Scholars As Amici Curiae In Support Of Petitioner, Susan D. Carle

Amicus Briefs & Court Filings

Amici curiae are leading legal ethics scholars with expertise regarding the rules, precedents, and other authorities regarding the professional responsibility and legal ethics obligations of lawyers. While this case involves protection of crucial Sixth Amendment rights of criminal defendants, it also implicates the professional responsibility and legal ethics obligations of attorneys representing clients at trial. Amici have a professional interest in ensuring that the Court is fully informed of the important professional responsibility and legal ethics issues in this case. Specifically, amici submit this brief to explain that the trial court's order in this case creates significant and serious problems …

The Pressure Points Of Professional Identity For Judges In The Modern Era, Charles G. Geyh

Articles by Maurer Faculty

The duties core to the professional identity of a judge are encapsulated in an ethical directive at the literal forefront of the Model Code of Judicial Conduct, some variation of which all state and federal judiciaries have adopted. Rule 1.2 provides that “[a] judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary[.]” This directive implicates three challenges, or pressure points, relevant to a judge’s identity: 1) insofar as judges begin their legal careers as practicing lawyers, when they ascend the bench their professional identities must transition from …

Chatgpt Didn’T Write This . . . Or Did It? The Emergence Of Generative Ai In The Legal Field And Lessons From Mata V. Avianca, James H. Curlin Iv

Arkansas Law Review

It’s no secret: Artificial Intelligence (“AI”), for better or worse, is revolutionizing the world. The legal field and legal education at large are not immune to this explosion of possible uses for AI technology. However, as with any technological advancement, AI and Generative Language Models bring with them many challenges, including the implications of their use. One such challenge was vividly presented in the case of Mata v. Avianca, often referred to as “The ChatGPT Case.” Mata is a cautionary tale of the potential missteps that can trip up the unwitting user who naively relies on the lofty promises of …

Legal Market Decartelization, Milan Markovic, Nuno Garoupa

Faculty Scholarship

American lawyers’ grip on the legal market is receding. Scholars and policymakers increasingly agree that the public has little to lose and potentially much to gain from legal market decartelization - the weakening of the lawyers’ monopoly over the legal services market. Harkening to deregulatory initiatives abroad and in Arizona and Utah, reformers contend that removing restrictions on the corporate delivery of legal services and unauthorized practice of law will slash costs and expand access to justice.

Drawing on economic theory and recent market developments, this Article offers a cautionary rejoinder. Understandable concerns about cartelization and lawyer rent-seeking have led …

Social Movement Lawyering And Due Process Values, Susan D. Carle

Scholarly Articles in Law Reviews & Journals

As I send this Essay off to the Fordham Law Review in early January 2025, many people in the United States remain in a state of shock following the recent election of Donald J. Trump to a second term as President. Theories abound as to why a person who espoused so much hate won the allegiance of a majority of American voters; some commentators have suggested that “anti-wokeism” is to blame. To be sure, the Trump campaign manipulated conservative social values to gain support. But conservative values are not necessarily anti-woke values. Ancient values oppose treating people badly and interfering …

Eye-For-An-Eye: High Compensation Awards Against States As Undue Punishment, David M. Bigge, Jonathan M. White

American University International Law Review

In observing the past several years’ debates regarding reparations under international law, we are reminded of lessons we learned as children in Sunday School. The Jewish and Christian sacred texts address the principle of retributive justice reflected in the Biblical phrase “an eye for an eye, a tooth for a tooth.” During the early rabbinic period, the great sages grappled with the import of this rule. Jesus famously rejected the rule in favor of mercy: “turn the other cheek.” The rabbis were not as interested in rejecting this rule in its entirety as ensuring that it yielded justice.

Technologically Competent Reprised: Ethical Practice In An Ai Age And Considerations For Our Courts In A Burgeoning Ai Era, Heidi L. Frostestad

College of Law Faculty Publications

The recent explosion of artificial intelligence and generative AI undeniably impacts our federal and state courts. Currently, ABA Model Rule 1.1 and its Comment include a broad requirement of technological competence for an ethical practice. This Article will identify the technical competence obligations embodied in Model Rule 1.1 and examine the implications of AI for technological competence standards. After reviewing the timeline of cases that invoke AI hallucinations and other issues and current scholarly literature, this Article will propose a more specific ethical standard for baseline knowledge of various AI technologies according to current practice and use of ever-expanding technologies …

What Lawyers Could Learn From The Corporate Practice Of Medicine, Melissa Mortazavi

Faculty Articles

Proponents of the United States’ domestic experiments in non-lawyer ownership (NLO) of legal practice justify them in terms of increasing “access to justice.” But what if opening ownership of legal practice to investment capital only exacerbates market failures (leading to further consolidation and increased costs to clients), while also compromising professional autonomy and fiduciary duty? The legal profession must be clear-eyed about who are the real winners and losers of such a shift and avoid being blinded by wishful thinking. Prominent legal scholars have repeatedly touted NLO as a solution to the access to justice crisis. However, there is scant …

Trial Lawyers And An Ethos Of Leadership: Enhancing Legal Education To Meet Evolving Demands, Anthony J. Ghiotto

University of San Francisco Law Review

No abstract provided.

Panel Discussion: So You Want To Publish A Book?, Suzanne Kim, Steven W. Bender, Angela J. Davis, Susan D. Carle, Clara Platter, Katheryn Russell-Brown

Scholarly Articles in Law Reviews & Journals

Reaching wide and varied audiences for our academic work through book publishing served as the focus on this pipeline program panel. Through a dynamic conversation among leaders in book publishing from the academic and editorial sectors, we discussed the nuts and bolts of book publishing.

We are indebted, for this important dialogue, to American University Washington College of Law, NPOC, and all the conference’s co-sponsoring schools. We particularly want to thank Vice Dean Susan Carle of American University Washington College of Law, whose idea it was to host this panel. We were joined by the following expert book authors for …

From The Editors, Robert Dinerstein, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

This issue includes articles, conference transcripts, and book reviews that date to 2019. The woeful delay is solely the result of our own editorial failure, and we wish to apologize on behalf of the Journal to our readers and to the many contributing authors who put their trust in us. Rest assured that procedures have been established to prevent reoccurrence of such unacceptable time lags. But do know that we appreciate having fallen far short of professional standards in this instance.

Panel Discussion: Balancing Scholarship, Teaching And Service To Succeed On The Tenure Track – A Workshop For Pretenure Colleagues And Faculty Aspirants, Brenda Smith

Scholarly Articles in Law Reviews & Journals

In imagining the National People of Color Legal Scholarship Conference, the planning committee brainstormed about the theme of the conference and the scope of panels and opportunities that would capture the breadth and vibrancy of scholarship by faculty of color. An antecedent, however, to that scholarship is the entry, success, and thriving of faculty of color in the academy.

Renewing Our Vows: The Lawyer's Oath And Our Pledge To Democracy, Colin M. Black

Suffolk University Law School Faculty Works

For centuries, lawyers have sworn to an oath as a prerequisite to admission. The oath, barely evolved from their historical roots, represents the guiding commitment lawyers make to democratic principles of honesty, integrity, fairness, and the rule of law. This commitment is in exchange for the power and privilege of belonging to the legal profession. However, the ethical landscape for legal practitioners has evolved, particularly in response to the alarming events of the 2020 U.S. presidential election. These events revealed significant lapses in the judgment and conduct among some lawyers, exposing the need for a recommitment to the democratic principles …

The Lawyer's Duty Of Competence In A Climate-Imperiled World, John C. Dernbach, Irma S. Russell, Matthew Bogoshian

UMKC Law Review

The United States has more than 1.3 million practicing lawyers. Under Model Rule 1.1 of the ABA Model Rules of Professional Conduct and every state’s rules of conduct, each of these lawyers owes clients competent representation. Under the rule, “[c]ompetent representation requires the knowledge, skill, thoroughness and preparation reasonably necessary for the services.” While law and rules will undoubtedly change in response to the climate crisis, the duty of competence does not await such change or legal reform. The ubiquitous nature of the duty of competence means it is applicable to each lawyer now and will continue to evolve as …

The Case For (And Against) Aba Regulation Of Non-J.D. Programs, Benjamin H. Barton

Scholarly Works

American law schools have pulled out of what looked like a death spiral. From 2008-18 job placement and bar passage cratered and applications and JD enrolment followed. Some law schools found themselves trapped between Scylla and Charybdis – if they did not loosen admissions, they would not have the funds to keep the doors open. But if they loosened admissions too much bar passage and placement suffered, prompting a possible closure via disaccreditation by the ABA (or the DOE).

There are (broadly speaking) two models of profitable higher education in the United States. The first is the old school, classic …

Clinics, The Cloud, And Protecting Client Data In The Age Of Remote Lawyering, Andrew C. Budzinski

Scholarly Articles in Law Reviews & Journals

Technology has become central to law practice. Attorneys have an ethical obligation to understand how that technology works, how it can facilitate client representation—and the risks it poses to the confidentiality of clients’ electronically-stored data. Law school clinics seem to fall behind the curve on this obligation. Some maintain outdated protocols, and some have no protocols at all, to manage and safeguard client data. This leaves client data less secure than it ought to be, risking harm to clients, ethical violations for attorneys, and missed opportunities to communicate the importance of ethical technology use to clinic students.

This Article offers …

The Sale Of Law Practice In Texas: The Need For A Rule, Ryan Hagens

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

Lawyers As Caregivers, Paula Schaefer

St. Mary's Journal on Legal Malpractice & Ethics

This Article argues that clients—much like patients in a healthcare setting—need their lawyers to be caregivers. The Article opens by developing a definition of caregiving in medicine and law. It then turns to five key components of caregiving in medicine, explaining the substantial research that this care is crucial for patient satisfaction, trust, and healing. Medical educators have drawn on this research to better prepare medical professionals to be excellent caregivers. The Article then explores the evidence that an attorney’s clients have the same needs and suffer similar harm when attorneys fail to meet these needs. Next, the Article turns …

Patients, Corporate Attorneys, And Moral Obligations, Ioan-Radu Motoarcă

St. Mary's Journal on Legal Malpractice & Ethics

There are two main questions that any account of corporate lawyers’ moral obligations needs to answer: (1) Do corporate lawyers have moral obligations to third parties? and (2) In cases of conflict between obligations to the corporation and obligations to third parties, which should prevail? This Article offers answers to these questions in the context of lawyers working in medical corporations. I argue that lawyers do have moral obligations to third parties, and that in cases where patients’ rights are being violated by a medical company, patients’ rights should prevail. Consequently, attorney–client confidentiality rules should be relaxed to allow for …

The Foundational Skill Of Reflection In The Formation Of A Professional Identity, Neil W. Hamilton

St. Mary's Journal on Legal Malpractice & Ethics

There is a growing scholarly literature on the professional development and formation of law students into the core values, guiding principles, and well-being practices considered foundational to successful legal practice.* This growing scholarly literature can guide effective curriculum development to foster student growth toward later stages of development on these learning outcomes. This Article focuses on the skill of reflection as one of the most effective curricular strategies to foster each student’s growth toward later stages of these learning outcomes. This same curricular strategy will also be effective in engaging practicing lawyers to grow toward these same goals. Part II …

The Fate Of Comment 8: Analyzing A Lawyer's Ethical Obligation Of Technological Competence, Lisa Z. Rosenof

University of Cincinnati Law Review

No abstract provided.

The Exclusion Of Public Legal Education From Mandatory And Aspirational State Pro Bono Service Requirements, Amy Wallace

Articles & Chapters

Pro bono service is embedded in legal education and practice. Every year, lawyers and law students across the United States engage in countless hours of pro bono service. There are over 1.3 million lawyers in the country and more than one hundred thousand law students enrolled in law school. Lawyers perform an average of thirty-seven hours of pro bono work each year. They reference several factors that motivate them to perform this work but the desire to help people in need ranks highest. Professional duty is also listed as an important factor for lawyers choosing to perform pro bono work. …

Chief Loophole Officer Or Chief Legal Officer: Inside Lehman Brothers—A Film Case Study About Corporate And Legal Ethics, Garrick Apollon

St. Mary's Journal on Legal Malpractice & Ethics

This Article discusses the continuing legal education (CLE) visual advocacy documentary-style program, which Garrick Apollon (author of this Article) researched and developed. The case study for this CLE documentary-style program is the film Inside Lehman Brothers—a documentary film by Jennifer Deschamps which chronicles the story of the Lehman whistleblowers. The film presents Mathew Lee, former senior vice president overseeing Lehman’s global balance sheet; Oliver Budde, former in-house counsel (associate general counsel) of the Lehman Brothers; and the racialized female mid-tier manager whistleblowers, who all paid a steep price in the 2008 American subprime mortgage crisis, while many of the …

Lawyers, Mistakes, And Moral Growth, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Vincent R. Johnson, professor at St. Mary's University School of Law in San Antonio, Texas, reviews The Man in the Ditch: A Redemption Story for Today by Dallas attorney Mike H. Bassett.